123s of Medical Spa Supervision

April 2, 2024

The burgeoning field of medical spas has emerged as a focal point of legal scrutiny in recent years. As medical spa services continue to evolve, so does the complexity surrounding the supervision and delegation of the services offered. In particular, as the demand for aesthetic treatments has grown, a closer examination of the responsibilities of those performing and overseeing these procedures is needed. Central to this discussion is the requisite qualifications for individuals undertaking supervisory roles in medical spas. Our exploration aims to equip medical spa practitioners and health care professionals with an understanding of the considerations inherent in the supervision of medical spa services.

The Practice of Medicine

Before diving into the specifics of supervision, it is imperative to recognize that a medical spa is, as its core, a medical practice. As such, medical spas are subject to the same rules and regulations as any physician’s office. The definition of the practice of medicine varies across states, encompassing a broad spectrum of services that may seem non-medical upon first glance, but are classified as medical services. For example, seemingly non-invasive procedures offered in medical spas such as Botox, fillers, other injectables, and certain laser treatments fall under this purview. Laser treatments in particular, such as intense pulse light therapy (“IPL”), are considered by most states to be both a medical device and a medical treatment. Conversely, certain non-invasive and non-medical procedures such as facials and massages are not considered medical services – these activities generally focus on beautifying, cleansing, or aesthetics, without involving medical interventions that require specialized training.

Consequently, adherence to legal frameworks governing the practice of medicine is paramount.

What Does It Mean to Delegate?

Delegation involves the transfer of specific responsibilities by a physician to non-physician providers, such as nurse practitioners (“NP”) or physician assistants (“PA”), registered nurses (“RN”), and others operating within the parameters set by the physician. These responsibilities include conducting the Good Faith Exam (“GFE”) or initial exam, making diagnoses, and formulating treatment plans when it comes to NPs and PAs, but also includes the actual performance of the procedures. Delegation is a crucial aspect that requires close attention to legal standards and regulations to ensure patient safety and compliance with licensing requirements.

Delegation in medical spas begins with the rules in the particular state as state regulations governing delegation will vary. Yet, regardless of what the specific rule is, a fundamental element will be the requirement of qualified individuals who possess the necessary skills, licensing, and training to perform these specific tasks. Therefore, those authorized to delegate tasks must guarantee that those receiving delegated responsibilities have undergone appropriate training and hold the proper licensing, are competent, and most importantly, are authorized by state law. Failure to adhere to these prerequisites can expose the licensed professionals involved to liability and jeopardize their license.

What Does It Mean to Supervise?

Supervision involves active oversight by a licensed physician or qualified health care professional, ensuring that procedures maintain the highest standards of care and safety. Supervision is typically divided into three distinct levels – (1) general supervision, (2) direct supervision, and (3) personal supervision, each requiring varying degrees of oversight. General supervision involves the physician taking overall responsibility for activities within the medical spa without the necessity of constant physical presence. This level of oversight is often associated with routine or lower-risk procedures where the physician’s immediate presence is not required. Direct supervision indicates a higher level of involvement, necessitating the physician’s physical presence in the facility and being immediately available during specific procedures or activities. This level of oversight is typically tied to more advanced or invasive treatments where the physician’s expertise may be required. For example, in the case of certain injectable treatments or laser procedures, the physician may need to be present in the medical spa and directly oversee the administration of the treatment. Personal supervision is the most stringent level of supervision, requiring not only the physician’s on-site presence but also active participation in and oversight of specific procedures. This level of supervision is commonly associated with high-risk or complex medical spa procedures where the physician’s direct involvement is crucial to patient safety, thus necessitating the physician to be in attendance in the room during the performance of the medical spa procedure. For instance, the physician would be physically present in the treatment room and actively performing or directly overseeing procedures.

The required level of supervision first begins with the state rules as each state will have different rules and different definitions of what is to be expected. Generally speaking, the level of supervision required will be dependent on the specific treatment being administered and the qualifications of the individual performing the service. In most situations, NPs and PAs will be permitted to perform services without the physical presence of a physician and simply require availability should a clinical issue arise requiring collaboration. As others become involved, a heightened level of supervision tends to be required, especially when you incorporate individuals not licensed in health care. Procedures carrying with them a higher risk to patients, such as lasers, may require a heightened level of supervision regardless of who is involved. Other procedures carrying a lower risk to patients may be afforded more flexibility for supervision. In some states, the decision is simply left to the supervising practitioner to determine the level of supervision necessary using their professional judgment and considering the circumstances involved.

Consequently, it is crucial to be aware of the specific regulations and requirements in a state. Compliance with these regulations is essential not only for legal reasons but also to maintain the highest standards of patient care and safety.

Who Can Supervise a Medical Spa?

Because a medical spa is a medical practice, supervision is generally limited to MDs and DOs. In supervising a medical spa, the Medical Director is responsible for maintaining the standard of care and ensuring that the services offered meet appropriate medical standards. This includes developing and implementing policies, ensuring compliance with state regulations, and providing guidance on the qualifications and training of practitioners. Ultimately, the Medical Director is assuming responsibility for all patients that are seen and treated at the medical spa. The Medical Director ensures that practitioners work within the confines of their licenses, adhere to ethical standards, and deliver care in line with the spa’s protocols.

Many medical spas employ independent NPs or PAs to supervise medical treatments, particularly for aesthetic procedures such as injectables and laser treatments. NPs can typically oversee various aspects of patient care, collaborate with other health care professionals, and manage treatment plans. They may directly supervise procedures, ensuring compliance with established protocols and maintaining a focus on patient safety. On the other hand, PAs typically work under the direct supervision of licensed physicians. In the context of medical spas, PAs may oversee specific procedures, administer treatments, and ensure that protocols align with established medical guidelines. The supervisory relationship between PAs and physicians is vital for maintaining the quality and legality of medical services in the spa.

However, the level of supervision required for these non-physician practitioners varies by jurisdiction. Some areas permit independent practice for NPs, while others require collaboration with or supervision by a physician. Currently, twenty-seven states and Washington, D.C. allow NPs full autonomy to practice without physician supervision. Twelve states allow NPs to only perform some of their duties independently and eleven states still require NPs to work fully under physician supervision. Independent NPs who have been granted full practice authority may, in some states, be able to serve as a Medical Director. One example of this is Arizona.

The Arizona State Board of Nursing released an advisory opinion stating that NPs may serve as Medical Directors with the proper education, competency, and certification for the procedures under their supervision. The NP serving as Medical Director is limited to supervising treatments provided by NPs, RN’s, LPN’s, certified nursing assistants and unlicensed personnel. The advisory opinion also limits the scope of aesthetic procedures that a practitioner may perform based on their license. Additionally, NP independent practices may still have restrictions on prescriptive authority. Such a statute often contains authorized schedules and classes of drugs that are prohibited. Opioids are commonly restricted, as in Florida where only a seven-day supply of opioids can be prescribed. Alternatively, in some states the nursing board takes applications from NPs and grants approval for prescriptive authority, often predicated on the NP’s education or training.

What Qualifications Are Required?

Ensuring that supervising professionals in a medical spa hold valid licensure in the practicing state is a fundamental legal requirement. State license requirements vary across states, with each jurisdiction establishing its own set of criteria for licensure. The absence of proper licensure carries severe consequences for both individual practitioners and the medical spa itself. Legal repercussions may include fines, sanctions, or, in extreme cases, the revocation of the medical spa’s operating license. Additionally, patients receiving services from non-licensed professionals may be exposed to risks, potentially leading to legal actions against the medical spa.

However, it goes beyond just licensing. Each supervising professional must also have the proper training and expertise in the types of medical services being delegated and supervised, or if working in collaboration. It’s not enough to simply secure a supervisor with a superior license. Licensing boards expect supervising professionals to be competent and able to step in if a clinical issue presents. Therefore, even though a physician possesses the medical license to supervise, if they don’t have particular training or education with respect to (or have never performed) a particular procedure, there will be significant risk of unprofessional conduct jeopardizing their license. This exact situation recently arose in North Carolina.

PAs work under the supervision of a licensed physician, and this relationship is crucial to maintaining the quality and legality of the medical services provided in a medical spa. A recent case study by the North Carolina Medical Board (“NCMB”) focused on a PA who, after a successful year in solo practice, expanded her services to include cosmetic procedures without meeting required monthly meetings with her off-site supervising physician. More importantly, the supervising physician lacked the training for the new procedures, leading to an investigation by the NCMB. The NCMB had the following to say:

A key aspect of the supervisory relationship between physician and PA (or any other APP) is that there must be parity between the knowledge and skills of the supervisee and the supervisor. While there is no issue with a physician’s clinical knowledge and expertise exceeding those of the supervisee, it is never acceptable for the supervisee’s knowledge and, more specifically, their scope of practice, to surpass that of the primary supervising physician. It is NCMB’s view that it is not feasible or appropriate for a physician to supervise a procedure or treatment he or she cannot perform competently themselves.

This example emphasizes the importance of understanding and adhering to state rules, including regular quality improvement meetings, detailed scope of practice documents, and ensuring the proper knowledge and skills exist among supervisee and supervisor.

Additional Compliance Considerations

Additional considerations to be aware of include certain state limitations regarding physician supervision of other health care professionals. In particular, some states have strict numerical restrictions on the supervision or collaboration between physicians and other practitioners such as PAs and NPs.

For example, Texas imposes specific limitations stipulating that a physician may delegate prescriptive authority to no more than seven NPs at any given time. Conversely, Florida law does not specify a maximum number of PAs or NPs that a physician can supervise. However, Florida contains a medical director law and imposes stringent requirements on the number of satellite offices that may be involved.

These types of limitation are important to consider as they can create hurdles for medical spas seeking to scale their operations.

Prioritize Compliance

It is critical for medical spa practitioners to take heed of the growing legal scrutiny surrounding medical spas and the evolving complexity in supervising and delegating medical services within this field. The core issue revolves around recognizing medical spas as medical practices, subject to the same regulations as traditional health care settings. Overall, a comprehensive understanding of legal frameworks and adherence to these regulations are imperative to ensure patient safety and mitigate legal liabilities in the rapidly evolving landscape of medical spa supervision.

ByrdAdatto Can Help You Navigate Medical Spa Compliance

Remember, effectively balancing business, legal, and health care considerations while ensuring regulatory compliance is essential for establishing a thriving medical spa practice. If you are a medical practitioner uncertain about compliance in the realm of medical spa supervision and delegation, we encourage you to reach out to our experienced team for professional guidance and tailored legal solutions. At ByrdAdatto, we specialize in guiding clients through the legal nuances of medical spa operations. If you have further questions, contact ByrdAdatto at info@byrdadatto.com.

ByrdAdatto founding partner Michael Byrd

Michael S. Byrd

As the son of a doctor and entrepreneur, ByrdAdatto attorney Michael S. Byrd has a personal connection to both business and medicine.